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Not Lambdin Milligan or Timothy McVeigh, but Johnny Reb?

I thank Professor Alford for his measured response to my essay. I will discuss the key issue it raises. His invocation of Ex parte Milligan also prompts me to briefly address the relevance of the location of a citizen to my general thesis regarding the amenability of citizens to war measures—a topic I earlier eschewed in an endnote.

Professor Alford and I disagree regarding one key point: the fundamental legal nature of targeted killing. Professor Alford’s argument appears to essentially rest on the proposition that, from the perspective of our Constitution, all executive or legislative orders to kill a specific citizen have the effect of branding them a traitor and imposing punishment. This is why I, and perhaps also Professor Larson, emphasized that targeted killing in armed conflict is not “punishment.” Johnny Reb could lawfully be targeted in the course of Civil War hostilities. He could also be prosecuted and punished for treason if captured (though commentators of the era suggested that such prosecutions were properly instituted only against leaders of rebellions).[1] For the latter, the Constitution requires the testimony of two witnesses to the same act or a confession in open court, but this is not so of the former. Each act has a distinct legal character, and a distinct basis in the Constitution.

Indeed, what Professor Alford describes as the “evil” on the Framers’ minds when drafting the Bill of Attainder and Treason Clauses would not permit targeted killing in armed conflict. The laws of war only permit targeting of “combatants” (or “fighters”) and civilians or non-combatants actively taking a direct part in the hostilities of an armed conflict. Those considered hors de combat, meaning “out of the fight,” may not be. But as Alford explained in his response to me,

“it is vital to understand that the Framers’ motivation in drafting the Bill of Attainder and Treason Clauses was precisely to prevent any branch of government from being able to label an alleged traitor during wartime or a rebellion as an enemy or an outlaw, i.e., a particular person who could then be killed on sight under any circumstances, even when attempting surrender, without judicial process.” (emphasis mine)

“The Framers considered a bill of attainder an unmitigated evil in part because it authorizes the killing of a citizen under any circumstances, and serves as an a priori defense to any claim that a citizen was unlawfully killed. Whether the person attainted is attempting to surrender, demanding a chance to prove his innocence, or simply sleeping in his own bed, he may be killed.” (emphasis mine)

I earlier argued that for the targeted killing of a citizen to be permissible, it must occur in the context of an armed conflict and be consistent with the laws of war. As the State Department Legal Advisor made clear in relation to the killing of Osama bin Laden, combatants in an armed conflict must be allowed to surrender if they clearly manifest the intent to do so. This is because at the point they surrender they are “out of the fight.” Although demonstrating a clear intent to surrender may be somewhat difficult in al-Awlaki’s case, it is certainly not impossible. Thus, my argument for targeting him does not meet Professor Alford’s legal description of attainder, and helps to explain why such killing is not “punishment” for treasonous acts.

Although deserving of more research, I think it possible that the evil Alford describes has a somewhat different historical origin. Traditionally, certain individuals were thought to be “enemies of mankind” who could be summarily punished (usually executed) when encountered. These included pirates, highway robbers, and other outlaws whose conduct was essentially considered private war-making and punished as contrary to the law of civilized peoples and nations. In the context of armed conflict, “irregular” or “guerilla” fighters also fell into this category. For example, article 82 of the Lieber Code of 1863 (issued by President Lincoln to Union forces as General Orders 100)—largely credited as the first codification of the laws of war—stated,

“Men, or squads of men, who commit hostilities, whether by fighting, or inroads for destruction or plunder, or by raids of any kind, without commission, without being part and portion of the organized hostile army, and without sharing continuously in the war, but who do so with intermitting returns to their homes and avocations, or with the occasional assumption of the semblance of peaceful pursuits, divesting themselves of the character or appearance of soldiers—such men, or squads of men, are not public enemies, and therefore, if captured, are not entitled to the privileges of prisoners of war, but shall be treated summarily as highway robbers or pirates.” (emphasis mine)

I think it possible, even likely given Alford’s description and analysis, that an attainder was effectively a declaration that a given citizen was a conceptually similar “enemy of the crown” (or “sovereign” or “state”) condemned to certain death as punishment for disloyalty. If so, the function of the Bill of Attainder Clause would be to clarify that in matters of routine domestic governance, including such matters occurring incident to an armed conflict, any such executive or legislative declarations are prohibited.

It goes without saying that an armed conflict is anything but a matter of routine governance. The challenge is and always has been one of line-drawing—of distinguishing between crimes of violence or acts of dissent and acts of war or treason. Oklahoma City federal building bomber Timothy McVeigh no doubt “waged war” in some sense against his government. But would his personal war, even if he had eluded capture and successfully attacked again, be considered an armed conflict in which he could be lethally targeted on sight and without trial? That seems highly unlikely. While I make no firm assertion regarding whether Al Qaeda in the Arabian Peninsula is currently engaged in armed conflict against the United States, or whether Anwar al-Awlaki is properly targeted in any such conflict, available information suggests that this is at least plausibly the case. Judicial review in appropriate cases should demand adequate proof of such claims.

This important difference between matters of “routine” governance incident to war and those considered an essential aspect of war was essential to the Court’s decision in Ex parte Milligan. Lambdin P. Milligan was a twenty-year resident of the state of Indiana. He was convicted by a military commission for various acts sympathetic to or aiding the Confederacy and sentenced to death by hanging. While he successfully challenged the jurisdiction of the military commission in the Supreme Court, the Court did not establish an absolute constitutional requirement for Article III court trials as Professor Alford suggests. It noted that in Indiana, “the Federal authority was always unopposed, and its courts always open to hear criminal accusations and redress grievances.”[2] It then found that “[m]artial law cannot arise from a threatened invasion.” Instead, “[t]he necessity must be actual and present; [where] the invasion …effectually closes the courts and deposes the civil administration.”[3] In other words, contrary to what Professor Alford suggested, the Court did not completely foreclose subjecting citizens to these purely executive tribunals capable of imposing capital punishment. It merely limited the use of such tribunals to areas of conflict where the civil authority was unable to function.[4] In fact, purely executive military commissions regularly punished southern enemy belligerents and civilians during the Civil War. In Ex parte Quirin, the Court distinguished Milligan and held that enemy belligerents, including putative U.S. citizen Herman Haupt, were subject to military commission jurisdiction even within friendly U.S. territory when the courts are open.[5]

The upshot of these decisions appears to be that enemy belligerents, including citizens, are generally subject to war measures permitted by the laws of war no matter where they are. Civilian citizens sympathetic to or supporting enemies of the United States are not, particularly not in U.S. territory under the control of our civil authorities whether in peace or war.[6]

If Anwar al-Awlaki is properly classified as an enemy belligerent or takes a direct part in an armed conflict against the United States, the Constitution permits his individualized lethal targeting, particularly in a foreign land under the control of no authority at all, whether U.S. or foreign, civil or military. If he is simply a civilian sympathizer and spiritual leader supporting enemies of the United States, he is not subject to lethal targeting under the laws of war, and therefore must generally be prosecuted in Article III federal courts if he is to be punished for his disloyal acts.

Notes

[1] See, for example, Henry Halleck, Elements of International Law and Laws of War (Philadelphia: J.B. Lippincott & Co., 1866), at 154-55.

[2] Ex parte Milligan, 71 U.S. 2, 121 (1866).

[3] Id. at 127.

[4] For a discussion of concepts of military and imperative public necessity in war, see the forthcoming Temple Law Review article referenced in my earlier essay.

[5] Ex parte Quirin, 317 U.S. 1 (1942).

[6] See Duncan v. Kahanamoku, 327 U.S. 304 (1946) (overturning military commissions trials in Hawaii conducted even when civil authority was reestablished after the Pearl Harbor attacks).

Also from This Issue

In one sense, “targeted killing” is what war is all about. But can the executive branch rightfully declare a U.S. citizen the target of an assassination order? Lead essayist Ryan Alford argues that the “presidential death warrant” is repugnant to the rule of law—so much so that the Founders didn’t even think it necessary to make an explicit statement about the practice. At the time of the Revolution, English kings hadn’t enjoyed such a power for centuries, and it was thought to be the very antithesis of the rule of law. A power of this magnitude cannot be simply inferred from the Constitution’s silence, particularly when legal practice in the Anglo-American world tells so strongly against it.

John C. Dehn argues that context is critical in Anwar al-Awlaki’s case. He cites the Prize Cases, concerning a set of property seizures during the Civil War, and related Supreme Court precedent to argue that citizens with “enemy” status in an armed conflict require no prior adjudication of guilt before being made the object of war measures, but only if any such measures are consistent with the laws of war. Nonetheless, this does not amount to an unlimited power to issue executive death warrants; the courts may rule on the existence of a conflict or its proper scope, and are even constitutionally compelled to determine whether citizens were properly targeted within it. The courts should not avoid these issues under the “political question” doctrine.

Gregory McNeal argues for another source of executive power that may legitimize the targeted killing of Anwar al-Awlaki, namely the federal protective power. Even outside of wartime, longstanding precedent allows federal agents to protect the interests and liberties of the citizens, as well as federal property and public servants. One need not convict al-Awlaki of treason to understand that he poses a threat in this sense, and doing so does not render the Treason Clause otiose; treason trials may still proceed and are not suppressed in any way. He further argues that issues such as this one, requiring “an informed debate [on their] benefits and dangers,” are obviously political questions — therefore properly out of reach of the courts.

Carlton Larson finds that a kill order issued in a military operation is not designed to punish, as the penal system obviously is. Instead, it aims to prevent future attacks and is logically implicit in war itself. If al-Awlaki were captured alive, or if he were to turn himself in, the Treason Clause would then govern the case. It does not necessarily do so now. Although Larson declares that he has difficulty siding decisively with any position on the case, he notes that it is “formalistic in the extreme” to conclude that all that separates lawful warfare from unlawful bills of attainder is a naming of names.

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